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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Federal Judge in Colorado requires FWS to take another look at Graham's penstemon | Main| Federal Judge in Louisiana says plaintiffs lacked standing to bring ESA claims in Deepwater Horizon case »

Federal Judge in Arizona says U.S. Forest Service actions for Mexican wolf, and work with FWS, fulfilled ESA demands

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Defenders of Wildlife et al. v. U.S. Fish and Wildlife Service. Wildearth Guardians et al. v. U.S. Fish and Wildlife et al., CV 08-280 TUC DCB, CV 08-820 PHX DCB, 2011 U.S. Dist. LEXIS 66000 (D. Ariz., June 13, 2011).

BACKGROUND: In 1982, the U.S. Fish and Wildlife (FWS) Service issued the Mexican Wolf Recovery Plan.  In 1998 FWS issued a final rule, pursuant to section 10(j) of the ESA, to reintroduce an experimental population of Mexican wolves into the Blue Range Wolf Recovery Area (BRWRA).  FWS oversaw the recovery plan and reintroduction program for the species without complaint until 2003 when it entered into a Memorandum of Understanding with a number of federal, state, local, and tribal entities, including defendant U.S. Forest Service, to create the Adaptive Management Oversight Committee.  On April 30, 2005, the AMOC issued a document entitled the Mexican Wolf Blue Range Reintroduction Project Adaptive Management Oversight Committee Standard Operating Procedure 13, which was challenged by plaintiffs, Guardians and Defenders, in these consolidated cases.  In addition to suing FWS, Guardians also sued the U.S. Forest Service (USFS) for failing to confer with FWS to carry out a program to conserve the Mexican gray wolf.  On December 2009, a consent decree was entered between Defenders and the FWS.  FWS had filed a motion to dismiss Guardians’ claim against it, which was granted, because the court found the Consent Decree to provide all of the relief that Guardians sought.  

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Image by Arizona Department of Fish and Game from the Arizona Master Naturalist News Web Log.

ISSUE: With most issues resolved by the Consent Decree, the sole remaining claim in the case was between Guardians and the U.S. Forest Service.  The court considered 1) whether the USFS’s failure to develop and implement its own conservation program for the Mexican wolf is in violation of ESA §7(a)(1); and 2) whether the USFS’s support of the FWS’s Mexican wolf program has hindered the conservation of the subspecies.  The court denied Guardians’ motion for summary judgment because Guardians did not prove that USFS had totally failed to act to conserve the Mexican gray wolf.

RULING: 7(a)(1) requires equal, not agency-specific, responsibility.  The USFS had worked with the FWS to reintroduce the wolf to carry out the recovery plan and from the beginning, USFS participated in the reintroduction process, such as locating release pens, public information, and area management after reintroduction.  From the inception of the reintroduction program in 2008, USFS was an active participant in many ways which included serving alongside FWS as a member of various interagency management teams.  Guardians had argued that USFS did not independently develop its own agency-specific conservation program in accordance with 7(a)(1) and therefore this amounted to inaction.  The court looked to two cases, Pyramid Lake Tribe v. U.S. Dept. of the Navy, 898 F.2d 1410 (9th Cir. 1990) and Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998), to reach its conclusion that 7(a)(1) does not require USFS to develop its own independent agency-specific conservation program, but that it has responsibility equal to that of the FWS to use its authorities in furtherance of the conservation of the Mexican gray wolf and has an affirmative duty to carry out a program for the conservation of the Mexican gray wolf.

RULING: The USFS’s Interagency Cooperation and 7(a)(2) Biological Assessments did not Hinder Conservation of the wolf. Guardians had complained that the USFS’s contributions did not add anything to wolf conservation and took no affirmative steps to work with FWS to address the root of the problem:   years of consistent prioritization of uninterrupted implementation of the USFS’s domestic livestock grazing program over the mandate for Mexican gray wolf reintroduction.  The record reflected that USFS had imposed allotment-specific wolf conservation measures to cover wolf/livestock conflicts and that USFS consulted with FWS before issuing grazing permits in the BRWRA.  Therefore, the court did not find total inaction or failure on the part of the USFS to act to conserve the Mexican gray wolf.